Convicted as a Citizen, Not Deportable as an Alien: Sixth Circuit Extends Costello to INA § 1227(a)(2)(E)(i)

Introduction

The United States Court of Appeals for the Sixth Circuit, in Elfido Gonzalez Castillo v. Pamela Bondi, addressed a recurring puzzle in immigration law: can the government remove a person for a crime committed while he was (albeit fraudulently) a United States citizen after his citizenship is later revoked? The Department of Homeland Security invoked the child-abuse removal ground contained in 8 U.S.C. § 1227(a)(2)(E)(i), which makes “[a]ny alien who at any time after admission is convicted of a crime of … child abuse” deportable. Chief Judge Sutton, writing for a unanimous panel, held that the statute does not cover a conviction that occurred while the individual possessed United States citizenship. Accordingly, the court granted Gonzalez’s petition for review, vacated the removal order, and remanded.

Although the Supreme Court’s 1964 decision in Costello v. INS had already reached the same result under the moral-turpitude ground, this is the first published circuit decision applying Costello to the 1996 child-abuse provision. Judge Thapar, concurring, urged the Supreme Court to reconsider Costello, but acknowledged that lower courts remain bound by it.

Summary of the Judgment

• The relevant statutory text—“Any alien who … is convicted”—applies only if the person held alien status at the moment of conviction.
• Because Gonzalez was a naturalized citizen when he pled guilty, he falls outside the text of § 1227(a)(2)(E)(i).
• Costello v. INS controls: the same present-tense wording in a prior deportability ground was interpreted to exclude convictions that occurred during citizenship.
• Congress reenacted similar language in 1996 without alteration; under the prior-construction canon, the earlier judicial interpretation carries forward.
• The government’s “relation-back” theory—that denaturalization renders the person an alien ab initio—was squarely rejected in Costello and remains unpersuasive absent congressional amendment.
• Any remaining ambiguity would be resolved for the non-citizen under the immigration rule of lenity.
• Result: removal order vacated; petition granted.

Analysis

Precedents Cited and Their Influence

1. Costello v. INS, 376 U.S. 120 (1964)
   The linchpin precedent. Interpreted identical “is convicted” language in the moral-turpitude ground to exclude convictions entered during citizenship. Gonzalez treats Costello as binding and extends it to the child-abuse ground adopted 32 years later.
2. United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950)
   Concerned a special Espionage Act removal clause employing past-tense (“have been convicted”) language. The Sixth Circuit distinguished it on textual grounds, following Costello’s own distinction.
3. Post-Costello circuit cases: Singh (3d Cir. 2021), Hylton (11th Cir. 2021)
   Both applied Costello to the aggravated-felony ground. The Sixth Circuit aligned itself with their reasoning, eliminating any circuit split.
4. Statutory Interpretation Tools
   • Prior-construction canon (courts presume Congress adopts prior authoritative constructions).
   • Rule of lenity in deportation context (ambiguities construed in favor of the non-citizen).
   • Comparative statutory language (neighboring subsections using “has been convicted” or “has been”).

Legal Reasoning

The court’s opinion methodically worked through the following analytical steps:

1. Plain Meaning — “Alien” is statutorily defined as a person “not a citizen.” González was a citizen at the time of conviction; hence, he was not an “alien who … is convicted.”
2. Verb Tense — Present-tense “is convicted” contrasts with past-perfect formulations elsewhere in the statute. Congress knows how to reach prior convictions when it wishes.
3. Presumed Adoption of Costello — Congress reenacted the same wording in 1996. Under the prior-construction canon, courts presume Congress intended Costello’s reading to carry over.
4. Rejection of Relation-Back — Section 1451(a)’s “effective as of the original date” clause was held in Costello to govern derivative citizenship, not deportation provisions.
5. Text Over Purpose — Although Congress aimed to be tough on child-related crimes, the enacted text still governs. An “amorphous purpose” cannot override statutory phrasing.
6. Back-stop Lenity — Even if doubt remained, deportation statutes are strictly construed in favor of the non-citizen.

Impact of the Decision

• Immediate Precedential Effect in the Sixth Circuit
  Immigration Judges and the BIA must treat § 1227(a)(2)(E)(i) as inapplicable when the child-abuse conviction predates denaturalization.
• National Influence
  The opinion cements a growing consensus among circuits; absent Supreme Court reversal, DHS must rely on other removal grounds (e.g., fraud, controlled-substance offenses, aggravated felony) when the conviction occurred during citizenship.
• Legislative Signal
  Congress retains power to amend § 1227(a)(2)(E)(i) (e.g., by adopting “has been convicted” wording) to overrule Costello and its progeny.
• Supreme Court Re-examination
  Judge Thapar’s concurrence openly invites the Court to revisit Costello, foreshadowing potential certiorari petitions and a doctrinal showdown on relation-back.
• Chevron’s Demise Context
  Citing Loper Bright Enterprises v. Raimondo (2024), the court underscores that, after Chevron’s overruling, statutory text—not agency interpretation—decides.

Complex Concepts Simplified

• Relation-Back Fiction — A legal rule that treats an event (here, denaturalization) as though it occurred on an earlier date (the original naturalization). Think of it as an undo button that erases the intervening period.
• Prior-Construction Canon — When Congress reuses language that the Supreme Court has already definitively construed, courts assume Congress intends the same meaning.
• Present vs. Perfect Tense in Statutes — “Is convicted” looks to current status at the moment of conviction; “has been convicted” sweeps in past events irrespective of present status.
• Rule of Lenity in Immigration — Ambiguous deportation laws are interpreted in favor of the non-citizen, recognizing deportation’s severity.
• Derivative Citizenship — Citizenship a child derives automatically from a parent’s status. When the parent’s citizenship is voided ab initio, the child’s may vanish with it.

Conclusion

Gonzalez Castillo fortifies a bright-line rule: if a non-citizen is a United States citizen—validly or not—at the moment he is convicted, the “is convicted” grounds of deportability in § 1227 do not apply once that citizenship is later stripped. The decision honors textualism, the prior-construction canon, and the immigration rule of lenity, while highlighting a tension between statutory text and policy objectives. Whether Congress rewrites the statute or the Supreme Court revisits Costello, the Sixth Circuit has made clear that the ball now lies with those institutions. Until then, the temporal status of citizenship at conviction is dispositive under INA § 1227(a)(2)(E)(i).